Hostile Alien Case Exposes Danger of Activist
March 16, 2009
Of the many troubling realities regarding judicial activism, one is that
it is always a challenge to get the mass of citizens to enlist in a
committed fight against it — despite the self-evident truth of the
ideology’s dictatorial nature.
To make matters worse, the difficulty of that task rises exponentially
during booms and hard times.
But keenly aware of the importance of keeping up the battle against the
abomination, Andrew C. McCarthy (National Review) fired off an
insightful, resounding shot when he recently warned that "Federal courts
have just surrendered in the war against radical Islam.”
Tough, provocative language? Yes.
However, if we summon the courage to relive the sights, sounds, and
feelings that enveloped us on 9/11 as well as consider the abhorrent
madness evident everywhere Islamist fascists wield power, we will
realize that McCarthy deserves our thoughtful attention.
Giving that attention, we find he argues that in its decision regarding
al Odah v. United States, the U.S. Court of Appeals for the D.C.
Circuit "dealt a crushing blow to national defense.”
First, however, he provides the basis for Odah with the
observation that in last summer’s 5-4 Boumediene decision, the
Supreme Court’s liberal activists ruled that hostile aliens ("enemy
combatants”) are entitled to constitutional protections.
Just as important, argues McCarthy, Boumediene enunciated two
1) That the Court — not Congress acting in concert with the executive —
is the final arbiter regarding rights due hostile aliens.
2) That the Court recognizes no area in which it bears a constitutional
duty to defer to the elected branches of government.
(Indeed, Justice Anthony Kennedy took pains to announce — in what
McCarthy terms a "breathtaking decree” — that the "Executive’s powers as
Commander in Chief” are "vindicated” when they are "confirmed by the
Having illuminated the import of Boumediene, McCarthy makes the
following observations about the Odah ruling which has to do with
how much classified information a hostile alien is entitled to receive
with respect to why he is being held.
1) Agreeing with McCarthy that it injures "both the public and our
troops in harm’s way to give our enemies unnecessary insights about what
we know and how we know it,” the Justice Department argued that in
addition to being provided any exculpatory evidence, a person alleged to
be a hostile alien is entitled only to basic information regarding why
he is being held.
2) Justice also contended that with respect to such detainees,
government decides what information is exculpatory. (As a point of
reference, McCarthy reminds us that U.S. citizens have "no right to
force the government to present any exculpatory evidence to a grand
3) The D.C. Circuit, however, disregarded law that McCarthy calls "good
enough for American citizens accused of crime” and ruled that regarding
exculpatory evidence, "it is the court’s responsibility to make the
materiality determination itself.”
4) Moreover and astonishingly, the activist judges were expansive in
their decision, ruling that what is "actually inculpatory”
(emphasis from the decision) might be useful to the detainee.
(Yes, you read that last, stunning point accurately. The judges held
that when they deem it appropriate, they may order government officials
to provide hostile aliens with information regarding (in McCarthy’s
words) "what we know about their training programs, who attended them,
and how we might have come about that knowledge.”)
The shocking realities of the case made clear, McCarthy delivers this
profound warning regarding judges whose overriding principle appears to
be "anything to help the enemy.”
Henceforth, the price of detaining an enemy operative will be the
coerced disclosure of intelligence that may be more valuable to the
enemy than is the combatant himself. Factor in the enormous resource
drain the litigation requires, and holding prisoners becomes a net loss
for the war effort. And the war effort becomes a waste of time unless
you only kill rather than capture — which is al-Qaeda’s way of doing
things, but not ours.
The account of McCarthy’s compelling analysis of a "war powers” case
could end here. However, because this author proudly associates himself
with every other American who opposes the scourge of judicial activism,
it cannot end without mentioning that in the following passage from his
piece, McCarthy beautifully expresses the fundamentally dictatorial
nature of activist judges:
[Activist Judges] no longer see themselves as part of the U.S.
government. . .They are spectator turned critic turned detached manager.
Their self-perception is that of a shadow outside and above the U.S.
government, serving not a Constitution of limited powers but ‘the law’ —
an ever-evolving, all-encompassing corpus of cosmic justice.
How excellently does that passage do its job? Well, compare the idea of
its opening sentence with that of the last eight words of the following
quote, representing one of scores in which Jefferson condemned activist
judges, all of whom, he believed, deserve to be removed from office:
We have. . .[required] a vote of two-thirds in one of the Houses for
removing a judge; a vote so impossible where any defense is made before
men of ordinary prejudices and passions, that our judges are effectually
independent of the nation.
The comparison made, it is impossible to deny that McCarthy stands in
the company of the great Founder who, never wavering in his belief that
humanity’s "unalienable Rights” are best protected when power is held
close to the people, may rightly be called the father of the fight
against judicial oligarchy.
piece can close, with the hope it will play a small part in convincing
Americans of the deadly importance — to their lives and the life of
their democracy — of the battle begun a long yesterday ago by Thomas
Jefferson and joined so well today by citizens such as Andrew McCarthy.